Opinion
DOCKET NO. A-0485-14T2
03-17-2016
WILLIAM J. PARISH, JR., Plaintiff-Appellant, v. HANNAH KLUGER, Defendant-Respondent.
Brian G. Paul argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Paul, of counsel and on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1622-07. Brian G. Paul argued the cause for appellant (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Paul, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
Plaintiff William J. Parrish, Jr., appeals from those paragraphs of an August 18, 2014 post-judgment Family Part order that denied his motion to emancipate his then twenty-one-year-old child, ordered the parties to cooperate with a parenting coordinator and abide by her recommendations, and directed them to "return" to a psychologist for updated psychological evaluations for themselves as well as their two younger children, then ages thirteen and twelve. The trial court resolved these issues without a hearing in the face of certifications disputing material facts. More significantly, the court's statement of reasons does not adequately explain its decisions. For these reasons, we reverse and remand for further proceedings.
These are the facts. The parties married on July 3, 1998, and were divorced on July 24, 2008. They have three children, who were twenty-one, thirteen, and twelve when the order appealed from was entered in August 2014.
The Dual Final Judgment of Divorce (FJOD) incorporated the parties' marital settlement agreement (MSA), which contained an "Article" addressing alimony and child support and concluded with this sentence: "The aforesaid child support shall be eliminated upon a child becoming emancipated as defined by the law." Another MSA "Article" detailed parenting time. The parties were to share joint legal custody of the children, defendant was designated the parent of primary residence, and plaintiff was designated the parent of alternate residence. The parties agreed to "continue" with their parenting coordinator.
The parties' post-judgment motion practice evidences their difficulty communicating and behaving in a manner not adverse to the best interests of their children; each party blaming the other. The parties' disputes are detailed in a decision disposing of the appeal of plaintiff's first post-judgment motion and need not be repeated here. Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010). In Parish, we noted with respect to the parties' parenting time dispute: "By declaring the matter moot and directing the reengagement of the parenting coordinator, the parties were caused unnecessary delay and the parenting time problems remained unresolved. The court should have resolved the parenting time dispute." Id. at 58. We pointed out that "court review of the alleged violations of prior orders is not obviated by the parties' agreement to utilize a parenting coordinator." Id. at 60 (citing P.T. v. M.S., 325 N.J. Super. 193, 216 (App. Div. 1999) ("The court must not abdicate its decision-making role to an expert.")).
The record here is unclear as to what occurred following our remand in Parish. Plaintiff asserts in a certification "nothing ever became of it." In any event, in September 2012, the trial court filed an order to show cause granting defendant temporary sole legal and physical custody of the minor children, including sole medical decision-making, and denying plaintiff's request to emancipate the oldest child, who by then had reached the age of majority. The parenting time disputes were resolved by a consent order in which, among other things, the parties agreed to resume parenting time "per MSA" subject to certain specified exceptions.
In December 2012, the court entered an order disposing of plaintiff's motion. The court denied plaintiff's request to hold defendant in violation of litigant's rights for failing to comply with various provisions of the MSA; appointed a new parenting coordinator; and required the parties to attend, in good faith, mediation concerning a revised parenting time schedule as well as other issues. The order again denied plaintiff's application to have the oldest child declared emancipated.
In January 2014, the court entered an order disposing of more motions. The court, among other things: denied defendant's motion to have plaintiff declared in violation of litigant's rights for failure to collaborate with the new parenting coordinator; denied plaintiff's request to terminate the services of the parenting coordinator; and denied plaintiff's request for reconsideration of the emancipation of the oldest child.
This appeal stems from the trial court's rulings on plaintiff's motion filed in April 2014, and defendant's cross-motion filed in May 2014, both of which were decided with the entry of the court's August 18, 2014 order. In his motion, plaintiff sought, among other relief, the emancipation of the parties' oldest child; enforcement of the parenting plan detailed in the MSA; and the termination of the parenting coordinator's services. Defendant filed a cross-motion asking the court to deny each application for relief in plaintiff's motion and seeking relief that included enforcement of plaintiff's obligations under the MSA and previous orders, and sanctions for plaintiff's alleged violation of previous orders.
In support of his motion to have the older child declared emancipated, plaintiff averred the child had not spoken with him for more than three years. He claimed he did not have a say in the child's college choices. Plaintiff alleged the child "is clearly not a full-time student, I had no idea what [the child's] grades were in the first semester this year as neither [the child] nor defendant provided them to me[.]" Plaintiff further averred:
The last time I was informed [the child] had passed [twenty-seven] credits out of [fifty-four]. [The child] has completed [six] [s]emesters at a [two-]year Community College and is very far away from graduating. At the current pace [the child] will be enrolled in school for [four-five] years to get a [two]-year degree.
In her cross-motion, defendant blamed plaintiff for the deterioration of his relationship with their oldest child. Defendant averred the oldest child
has completed [the] third year at Raritan Valley Community College. Part of [the] reason for [staying] and not transferring to a four-year university, is [the] change in major [from] Business to Social-Work and Welfare, [losing] credits due to this change and applying to be admitted to The Rutgers/RVCC four-year degree in Social-Work, which is a degree from Rutgers, but based and in RVCC and having RVCC tuition. Another reason [the child] was unable to keep up was . . . due to illness.Defendant also accused plaintiff of failing to pay for previously court-ordered school costs for their child.
Defendant attached to her certification the child's grades for the immediately preceding school year. In the spring semester, the child took four courses and earned seven credits, receiving grades in two courses. The child withdrew from the third course and was given an incomplete in the fourth. For the earlier fall semester, the child had taken four courses, failed one, and received two A's and one B in others. The child earned nine credits.
In his reply certification, plaintiff attached the child's grades for the previous year. In the fall semester the child took four courses but failed one. The child received nine credits. In the spring semester that year, the child received nine credits but withdrew from another course. The school records revealed that as of the date the court decided the motion and cross-motion, the child had attempted eighty-six credits and earned forty-six.
In his certification, plaintiff also alleged defendant had violated the MSA's custodial and parenting time provisions on multiple occasions, thereby significantly interfering with his time with the children. As to the parenting coordinator, plaintiff averred that her verbal recommendations were entirely ineffective and despite twice promising written recommendations within a couple of days, the parenting coordinator had made no written recommendations as of the time plaintiff filed the motion. He asked the court to terminate her services.
In the certification supporting her cross-motion, defendant: characterized most of plaintiff's allegations as false; cited instances of plaintiff's questionable conduct; and admitted that numerous disagreements had arisen as to parenting time, activities, camp, the oldest child's education, therapy for two of the children, and special education for one of the children. Defendant blamed plaintiff for the parenting coordinator's ineffectiveness. She stated: "[p]laintiff will not even allow the new court-appointed Parent Coordinator an opportunity to make recommendations, he's prefer [sic] to make a list of people to blame and not think twice about the consequences for our children." Defendant, however, agreed with plaintiff "that the current parenting time schedule does not work and the Parent Coordinator has been specifically empowered to help us with adjusting it, but cannot until the first steps are taken and I believe that will be the psychological examinations." Defendant also averred that one of the younger children did not want to see his father.
In its written statement of reasons denying plaintiff's motion to have the oldest child declared emancipated, the court explained that the child "is clearly still in college and dependent on her parents as she pursues her education." The court noted the child was "pursuing a four (4) year degree at Raritan Valley Community College in conjunction with Rutgers." The court found the child's failure of a few classes neither negated her status as a full-time student nor indicated that she had completed her education or moved beyond the sphere of influence of her parents. Rather, the court concluded the child "is a full-time college student who relies upon her parents for financial support and does not meet the criteria for emancipation."
As to parenting time and the parenting coordinator, after acknowledging the parties' "apparent disagreement regarding the viability of the parenting agreement and the de facto arrangement," the court concluded neither party provided "a prima facia showing of changed circumstances on which the [c]ourt would base any modification of the parties' agreement." (emphasis omitted). The court noted the parties' agreed that parenting time no longer occurred as provided by the MSA but disagreed "regarding the deviation." Plaintiff certified the cause to be defendant's conduct. Defendant certified the cause to be plaintiff's disinterest in exercising parenting time. The court concluded: "In sum, the [c]ourt is presented with no basis on which to grant either parties' request that the [c]ourt modify the existing agreement." The court found no reason to terminate the parenting coordinator's services, and ordered the parties to cooperate with the parenting coordinator.
Lastly, the court's order directed the parties "[p]ursuant to [Rule] 5:8-1 . . . to return to [a psychologist] for updated psychological evaluations of [p]laintiff, [d]efendant, [and the two younger children]." The court directed the doctor to "update evaluations of each of the parties and . . . make recommendations regarding ongoing treatment as necessary." The court further directed the parties to sign any consent forms necessary to have the doctor consult with the parenting coordinator "and any other collateral contact"; and to comply with all recommendations made by the doctor.
With those facts in mind, we turn to plaintiff's arguments. Our review of the Family Part's rulings on motions such as those now before us is deferential. We accept a judge's determination if it is adequately supported by the record as a whole, and we do not disturb a judge's exercise of discretion so long as there is a rational explanation consistent with the law and the evidence. Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012). See, e.g., P.T. v. M.S., supra, 325 N.J. Super. at 219-20 (reversing an order imposing sanctions for a mother's violation of an order concerning restoration of a father's parenting time where the judge's findings were not supported by the evidence and the sanction was punitive rather than coercive and not beneficial to the child).
In plaintiff's first point, he contends the court erred by denying his motion to have the oldest child declared emancipated. Our analysis begins with the principle that "parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)). Children are emancipated when they have moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of [their] own." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This fact-sensitive evaluation must include consideration of issues such as the "child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). See also Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
When a child has reached the age of eighteen, the child is presumed to be emancipated, N.J.S.A. 9:17B-3, but the presumption is not conclusive. Newburgh, supra, 88 N.J. at 543. Consequently, if a child has reached age eighteen, the person seeking to have parental support continue has the burden of overcoming the statutory presumption. See Llewelyn v. Shewchuk, 440 N.J. Super. 207, 216 (App. Div. 2015); Filippone, supra, 304 N.J. Super. at 308.
A well-established instance defeating a request for emancipation and requiring continued support occurs when a custodial parent proves the child remains a full-time student. Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972). When a dependent child is enrolled in a full-time educational program, child support must continue. See Gac v. Gac, 186 N.J. 535, 542 (2006) ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation."); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (stating "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support").
Child support for an unemancipated child is guided by the factors set forth in N.J.S.A. 2A:34-23(a), which requires consideration of:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
In addition to child support, financially capable parents may be required to contribute to the higher education of children who are qualified students. See Kiken v. Kiken, 149 N.J. 441, 449 (1997); Newburgh, supra, 88 N.J. at 544; Rector v. Rector, 62 N.J. 577, 580 (1973); N.J.S.A. 2A:34-23(a). In Newburgh, supra, 88 N.J. at 545, the Supreme Court identified twelve non-exhaustive factors a court should consider when deciding a motion by one parent for contribution from the other parent toward the cost of a child's higher education. The factors are:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial
aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
"A relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the noncustodial parent for financial assistance to defray college expenses." Gac, supra, 186 N.J. at 546. Nonetheless,
the factors set forth in Newburgh . . . contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred. As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application.
[Id. at 546-547.]
When fixing parental obligations for dependent students, courts "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac, supra, 186 N.J. at 543. In doing so, "the trial court has substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008) (citing Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001)). "Therefore, if the award is consistent with the law the award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Ibid. (quoting Foust, supra, 340 N.J. Super. at 315-16) (internal quotation marks omitted).
On appeal, plaintiff first challenges the judge's conclusion regarding the parties' oldest child's full-time student status. The court appears to have concluded emancipation was inappropriate because the parties' oldest child was enrolled in college and had failed only a couple of courses. Those findings appear to be unsubstantiated. However, the judge did not address substantial evidence in the record suggesting the parties' oldest child was not passing a sufficient number of courses to meet the requirements of a full-time student, which oft times has been recited as twelve credit hours per semester. See, e.g., Tretola v. Tretola, 389 N.J. Super. 15, 18-19 (App. Div. 2006). The judge never addressed this issue, although squarely raised by plaintiff. On the other hand, defendant's certification suggested school performance was impeded because the parties' oldest child suffered from illness, with no further explanation of the causal connection. The trial court failed to adequately explain how it resolved these and other conflicting facts set forth in the parties' certifications.
Further, the trial judge's statement of reasons includes no analysis of the statute or a consideration of the Newburgh factors, which notably include "the commitment to and aptitude of the child for the requested education." Newburgh, supra, 88 N.J. at 545. See also Moehring v. Maute, 268 N.J. Super. 477, 480-81 (Ch. Div. 1993) (holding a child past the age of majority who is a full-time student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to continued financial support if the parents have the ability to pay).
Accordingly, we reverse and remand this matter to the trial court for evaluation of the parties' proofs regarding the oldest child's full-time student status to determine whether she is emancipated. "[I]f there is a genuine, material and legitimate factual dispute" a plenary hearing may be required. Segal v. Lynch, 211 N.J. 230, 264-65 (2012); [see also Tretola, supra, 389 N.J. Super. at 20-21.]
If emancipation is not supported, child support shall be fixed after application of the statutory factors enumerated in N.J.S.A. 2A:34-23(a) and, if appropriate, college costs set according to the Newburgh factors. In doing so, the court shall state express findings of fact and conclusions of law. We leave to the trial court's discretion the need for a hearing. If one is not held, the court must explain why it was unnecessary.
Plaintiff next contends the trial court erred by mandating the parties comply with the parenting coordinator's recommendations concerning the children. When discussing the parties' certifications concerning parenting time, the trial court acknowledged both parties certified the MSA parenting plan was not working, that is, "parenting time does not occur as provided by the MSA." The court also acknowledged the parties disputed the reason the MSA parenting plan was not working, plaintiff attributing the failure to defendant's conduct, defendant attributing the failure to plaintiff's disinterest. The court did not resolve those competing allegations; rather, it stated it did not find defendant "solely responsible" for the deviation from the plan, and it determined neither party had established a sufficient change in circumstances to alter the existing agreement. When it addressed plaintiff's motion to terminate the parenting coordinator's services, however, the court denied the motion and ordered the parties' to comply with the coordinator's recommendations, even though plaintiff had averred eleven weeks had passed without the parenting coordinator making formal written recommendations, despite her assurances that she would promptly issue them.
If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court's decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court's decision is considered in its entirety, it could be interpreted — as plaintiff has interpreted it — to vest in the parenting coordinator the resolution of the parties' conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to "abide by [the parenting coordinator's] recommendations."
It may be the trial court did not intend to link its denial of plaintiff's relief concerning parenting time to its directive to the parties to comply with the parenting coordinator's recommendations. If that is the case, the court should explain its decision on remand. When a trial court issues reasons for its decision, it must clearly state its factual findings and correlate them with relevant legal conclusions, so the parties and appellate courts are informed of the rationale underlying those conclusions. Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div. 1986). The trial court does not discharge that function simply by recounting the parties' conflicting assertions and then stating a legal conclusion. The court must make factual determinations and correlate them with relevant legal conclusions. Ibid.
Moreover, if the parties' certifications establish conflicting facts dispositive of a legal issue before the court, then the court must resolve those facts, and a hearing may be necessary. Here, we cannot properly assess the trial court's conclusions because it did not resolve disputed facts that needed to be resolved before the motion and cross-motion could properly be decided. Accordingly, we reverse the trial court's order and remand the case for amplification of the court's opinion. If necessary, the court shall conduct a hearing to resolve disputed facts dispositive of the legal issues.
In his final point, plaintiff contends the trial court erroneously ordered him, defendant, and the two younger children to undergo psychological evaluation. The court ordered the evaluations "based upon its understanding of the global issues in this matter, and having identified the concerns of the parties regarding the children in this matter, and pursuant to Rule 5:8-1." Plaintiff asserts he has not undergone a psychological evaluation needing updating. Plaintiff also asserts that the court had no authority to require updated psychological evaluations after ruling, in effect, there were no substantial outstanding issues concerning custody of the children or parenting time.
We fail to discern the basis for the court's order concerning the parties. The court can amplify its reasons when it resolves the issues concerning the oldest child's emancipation, parenting time, and the parenting coordinator's continuing role in what appears to be the parties' ongoing dispute over parenting time.
Paragraphs one, six, and seven of the August 18, 2014 Family Part order are reversed. This matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Reversed and Remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION